From 26 August 2024 non-small-business employees have a new ‘right to disconnect’ outside of work hours. This means employees can refuse to monitor, read, respond to contact (or attempted contact) from an employer or a third party such as clients, suppliers, staff from other businesses or the public outside of work hours.
Contact may include a range of communication channels used to engage with employees, such as calls, emails, texts, social media and messaging services.
However, the refusal of contact outside of work hours must not be unreasonable.
When working out whether an employee’s refusal is unreasonable, the following factors must be considered on a case-by-case basis:
- the reason for the contact
- how the contact is made and how disruptive it is to the employee
- how much the employee is compensated or paid extra for:
- being available to perform work during the period they’re contacted, or
- working additional hours outside their ordinary hours of work
Non-monetary compensation will also be considered such as additional leave, flexible work arrangements and other rewards.
- the employee’s role in the business and level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities.
Any other relevant matters may also be considered.
It will be unreasonable for an employee to refuse to read, monitor or respond if the contact or attempted contact is required by law.
These laws will commence on 26 August 2025 for small business employers and their employees.
The right to disconnect is a workplace right under general protection laws. This means employers are prohibited from taking adverse action against employees who reasonably exercise the workplace right to disconnect.
Importantly, the new laws do not mean that employers cannot contact an employee outside of their working hours – or that they will be acting unlawfully by doing so – rather there is now to be a determination about whether an employee’s refusal is unreasonable or not.
What should employers do?
- Review current practice of employee’s work activities outside ordinary working hours and discuss with employees the parameters around when they can disconnect from work and when they will be expected to be available to monitor, read or respond to contact.For example, a specialist technical engineer is told that while out of hours contact is not common, they may be contacted out of hours in response to a critical technical outage. They do not need to monitor emails but will be expected to answer or return a phone call about a serious outage.
- Ensure employees are appropriately compensated and given the right work conditions in accordance with an award, enterprise agreement or employment contract for entitlements that may apply, example overtime, penalty rates, flexible work arrangements etc
- Discuss preferred out of hour contact channels with employees to ensure contact, for example if there’s a serious issue, an employee may prefer to be called on their personal phone so that they do not have to monitor a work phone or email account.
- Ensure appropriate personnel are aware of out of hour contact arrangements. For example, managers and supervisors may formalise arrangements for out of hours contact and communicate those arrangements with senior leaders. For external clients, managers and supervisors may consider whether and how they should discuss expectations about communication with their clients.
- Train personnel such as managers, supervisors and employees on right to disconnect laws and the expectations in the workplace to promote the well-being of employees and minimise the risk of adverse action claims.
- Prepare, amend or update position descriptions, policies and procedures to reflect expectations for out of hours contact. Depending on your level of subscription, BetterHR has a basic Right to Disconnect Policy template available on the BetterHR Portal or for purchase in the BetterHR Shop.
- Regularly review any out of hours contact arrangements with employees. For example, the arrangement could be reviewed on a regular basis or when there’s a change in an employee’s hours (such as a change to hours or work due to a flexible work arrangement).
Disputes
As this is a newly created right concerning untested legislation, it is unclear at present how the various factors will be interpreted and applied by the Fair Work Commission and whether certain factors will be given greater weight than others.
If there is a dispute about whether an employer thinks an employee’s refusal is unreasonable, there is a requirement that the parties discuss and attempt to resolve the dispute at the workplace. If resolution cannot be reached at the workplace level, then employees or employers can seek the intervention of the Fair Work Commission to make “stop orders” or otherwise deal with the dispute. The Fair Work Commission can make “stop orders” that:
- an employee be prevented from, or stop, unreasonably refusing to monitor, read or respond to the contact
- an employer be prevented from, or stop, taking disciplinary action or any other action against an employee
- an employer be prevented from, or stop, requiring the employee to monitor, read or respond to the contact.
BetterHR’s View
We think the reason(s) for contacting an employee, the nature of the employee’s role and seniority will be the key considerations in determining whether an employee is entitled to not respond to contact outside of hours.
Furthermore, it is also our view that it will be less likely for it to be reasonable for an employee to refuse contact from an employer, if they are remunerated to work ‘reasonable additional hours’.
Changes in Modern Awards
All modern Awards will now include a right to disconnect term.
Below are direct links to the varied clauses for BetterHR’s common Awards:
Hospitality Industry (General) Award
Manufacturing and Associated Industries and Occupations Award
Dry Cleaning and Laundry Industry Award
Social, Community, Home Care and Disability Services Industry Award
Amusement, Events and Recreation Award
Vehicle Repair, Services and Retail Award
Storage Services and Wholesale Award
Health Professionals and Support Services Award
Road Transport and Distribution Award
Electrical, Electronic and Communications Contracting Award
Building and Construction General On-Site Award
Banking, Finance and Insurance Award
Hair and Beauty Industry Award
Click here to visit the Fair Work Commissions page for variation in other Awards.
Agreements
If you’re covered by an enterprise or other registered agreement, check the terms of your agreement for information about the right to disconnect.
Do not forget to check out our basic Right to Disconnect Policy template. Depending on your level of subscription, the policy is available on the BetterHR Portal or for purchase in the BetterHR Shop.
If you need further information or assistance, please contact BetterHR’s experienced HR consultants, and qualified lawyers on 1300 659 563 or visit: Subscribe to BetterHR.
